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84
Article 19 v Eritrea
(2007) AHRLR 73 (ACHPR 2007)
in a state unavailable and ineffective? The complainant was simply
casting doubts about the effectiveness of the domestic remedies. The
African Commission is of the view that it is incumbent on the
complainant to take all necessary steps to exhaust, or at least
attempt the exhaustion of local remedies. It is not enough for the
complainant to cast aspersion on the ability of the domestic remedies
of the state due to isolated incidences. In this regard, the African
Commission would like to refer to the decision of the Human Rights
Committee in A v Australia 9 in which the Committee held that ‘mere
doubts about the effectiveness of local remedies or the prospect of
financial costs involved did not absolve an author from pursuing such
remedies’. 10 The African Commission can therefore not declare the
communication admissible based on this argument.
68. As regards the complainant’s argument that the government
has failed to abide by its own constitutional obligations as provided
for in article 17 of the Eritrean Constitution, the African Commission
is of the view that the whole essence why human rights violations
occur is because governments fail to abide by their domestic as well
as international obligations. When this happens, individuals whose
rights have been, are being or are likely to be violated seize the local
courts to invoke their rights in order to compel governments to abide
by these obligations. The Eritrean Constitution provides ample
safeguards against persons who are arrested and detained without
charge or trial. Apart from sub-articles 1, 3, and 4 of article 17, subarticle
5 of the same article is very instructive. It provides that
Every person shall have the right to petition the court for a writ of
habeas corpus. Where the arresting officer fails to bring him before the
court of law and provide the reason for their arrest, the court shall
accept the petition and order the release of the prisoner.
69. In the instant case therefore, the complainant could, at the
very least, have seized the local courts by way of a writ of habeas
corpus to draw the court’s attention to the constitutional provision
they claim the government has breached. Lawyers often seek the
release of detainees by filing a petition for a writ of habeas corpus.
A writ of habeas corpus is a judicial mandate to an arresting officer
ordering that an inmate be brought to the court so it can be
determined whether or not that person is imprisoned lawfully and
whether or not he should be released from custody. A habeas corpus
petition is a petition filed with a court by a person who objects to his
own or another's detention or imprisonment. The writ of habeas
corpus has been described as ‘the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state
9 Communication 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
10 See also L Emil Kaaber v Iceland, communication 674/1995, UN Doc CCPR/C/58/
D/674/1995 (1996). See also Ati Antoine Randolph v Togo, communication 910/
2000, UN Doc CCPR/C/79/D/910/2000 (2003).
African Human Rights Law Reports